Not-So-Zen and the Art of Voluntary Agreements — If you haven’t already seen it, be sure to read Kurt Sutter’s essay on Google and copyright. “I’m sure Mr. and Mrs. Google are very nice people. But the big G doesn’t contribute anything to the work of creatives. Not a minute of effort or a dime of financing. Yet Google wants to take our content, devalue it, and make it available for criminals to pirate for profit.”

Copyright Holders Look for an Antipiracy DMCA Upgrade — Speaking of voluntary agreements, yesterday the USPTO held its first in a planned series of public multistakeholder forums designed to create voluntary solutions to improve the functioning of the DMCA notice and takedown process within the current statutory framework. A consensus emerged that stakeholders would begin by tackling the standardization of the process and then going from there.

Court gags Dotcom bodyguard — Kim Dotcom, self-proclaimed free speech advocate, has successfully gotten a court to prohibit a former employee from speaking out in public about his time in Dotcom’s employ.

26 Comments

The O’Connor article is fascinating, indeed.
Somehow I get the feeling that it will end up being a purely academic effort, because the constitutional challenges it necessarily entails will be considered too much of a bother. For a start, if the IP Clause were to be read in this fashion it would render much of present-day copyright law unconstitutional.
This might be music to the ears of certain copyright opponents, but it’s worth pointing out that the first thing to go under such a reading would be the “limited times” language. A natural copyright, as a matter of common law, can easily be argued for – and O’Connor even provides a roadmap towards such an argument towards the end of this article – and such a right would likely be perpetual (as long as continuity of legal title can be demonstrated, at least).
In fact, the “limited times” restriction makes a good deal more sense in the context of O’Connor’s reading of the IP Clause than in conventional ones, that include copyright in works of Fine (as opposed to useful) Art or entertainment. The kind of works protected under O’Connor’s reading can be (and often are) arrived at independently by several authors. Moreover, a perpetually protected exclusive right to such works could concievably foreclose later progress, brought about by developing an existing invention or discovery. Neither of these considerations applies to works of Fine Art or entertainment. Copyright in a book does not foreclose the writing of a different one – even if it explores the same ideas and themes – nor can we expect two different authors to produce the same work independently of one another. Other than providing public benefit at private expense (which – as a purpose of government – is, I believe, a fairly recent notion, in any case), there is very little support for a “limited times” restriction with regards to copyright.
As stated above, I doubt this article will have any profound effect on how the IP Clause is interpreted by law makers or the courts, but it is certainly well-argued and makes a good deal of sense.

I think it’s incorrect to suggest that concerns over independent “reinvention” and foreclosure of later “progress” don’t apply in the case of fine arts. You might be interested in The Public Domain by James Boyle (who lays out some of the problems created by such). I think that one can only credibly argue for the inapplicability of these things if one is very sharply constraining the subject matter and scope of copyright, relative to what it presently covers. For example, perhaps you could make this argument if copyright protected only word-for-word duplicates of texts, or note-for-note duplicates of music. (I think that, ultimately, there are pragmatic reasons why society still wouldn’t want to grant perpetual rights even in such limited forms, but your argument would at least have some plausibility, in such cases.)

But our current conception of copyright is much broader than that, of course, extending quite extensively to derivative works. Should the first person to write a 1-4-5 chord progression forever own the rights to such? Do we believe that nobody else would ever independently rediscover a 1-4-5 progression? Should all subsequent music be prohibited from ever using a 1-4-5 progression, without a license from the original discoverer of such?

Should nobody ever be able to riff off of a story, or characters, created in a prior text, without a license? Should James Joyce have had to obtain a license from Homer’s heirs, in order to write Ulysses?

It would, in fact, be a very substantial burden upon the fine arts, and society, if fine art copyright were treated as a perpetual right, rather than a time-limited right. Ultimately those burdens are not terribly different from the problems that would arise from perpetual patents.

Your examples of “current” Copyrights aren’t accurate…
‘Chord progressions’ aren’t usually subject to protection.
You are usually free to ‘riff’ as long as you’re not using the popularity of someone elses work to enhance or “make” your own (ie, you can be inspired by, but not copied from)
As someone else once said, you are free to write about wizards, dwarves, elves, etc…but yours can’t be named Gandolf from Middle Earth, and you’d better have different characteristics and adventures. You can’t copyright ideas or themes, just as you can’t copyright chords or chord progressions…

AudioNomics–
In Bridgeport Music v. Dimension Films, the 6th Cir. said that three notes could be protected.

Also, Tolkien didn’t invent the name Gandalf. He copied it, along with a number of other names, from a previous work. If he was entitled to do so, why shouldn’t everyone else be entitled to do likewise? If you say that well, Tolkien applied that name to a wizard, and thus people are entitled to reuse the name but not for their own wizards, then presumably Rowling’s Harry Potter and Butcher’s Harry Dresden, both wizards, are going to have to have it out.

And where will this end? Copyright, as is to be expected, lends itself toward rent seeking. If I pay homage to an actor I like, and name my fictional wizard Gandolfini, might not the Tolkien estate go after me, if you’ve empowered them with the sole and permanent rights to have a wizard named Gandalf or anything similar? Eventually the slow but steady expansion of the copyright claims, and the filling in of gaps, suffocates the arts.

In Bridgeport Music v. Dimension Films, the 6th Cir. said that three notes could be protected.

I think the issue at question in that case was that the recording of a guitar chord can be protected. Had N.W.A. recorded their own guitar arpeggio, even if it was the same chord used in the original Funkadelic song, I don’t believe there would have been an issue. This is an example of the difference between idea and expression. The chord form, a theoretical construct, is the idea, and the recording of it is an expression in a fixed medium.

If I pay homage to an actor I like, and name my fictional wizard Gandolfini, might not the Tolkien estate go after me

That’s pretty much what Mad Magazine has done in every issue for over forty years. Have they ever been sued? Genuine question, I don’t know the answer to that.

AudioNomics–
Quite recently the Conan-Doyle estate claimed that any use of the Sherlock Holmes characters was infringing because a handful of the original stories featuring the characters had not yet fallen out of copyright. Fortunately, the court that decided the issue followed the precedent from Silverman v. CBS, but my point remains that copyright encourages rent seeking.

Your claim that copyright is somehow necessary for original works is also demonstrably we on as the history of works pre-1710 (or later depending on jxn, type of work, etc.) proves.

In fact in some cases, copyright has no material benefit at all when it comes to encouraging the creation and publication of original works. The US adopted architectural copyrights in 1990 IIRC. By all means show us which buildings would not have been conceived of and built but for architectural copyright? No, there are a host of factors that incentivize the creation of works, and in that field copyright is of no consequence at all. But we’re stuck with it anyway.

And do also bear in mind that the progress of science is promoted by both original and derivative works. Or are the paintings and sculptures of biblical stories made in the Renaissance just recycled crap to you?

The US adopted architectural copyrights in 1990 IIRC. By all means show us which buildings would not have been conceived of and built but for architectural copyright?

I think the more relevant question is whether there have been books featuring architectural designs, of buildings which may or may not have been built, that would not have been published had the plans not been protected by copyright. Again, like above, I don’t know the answer to this question; i.e. whether there has been an increase in books published about architectural designs.

Patrik–
“I think the more relevant question is whether there have been books featuring architectural designs, of buildings which may or may not have been built, that would not have been published had the plans not been protected by copyright. ”

Sorry, but no.

Blueprints were already copyrighted as visual works. The AWCPA added a copyright in actual buildings themselves. So I still eagerly await news of buildings which would not have been built but for the copyright in them since the Act was amended. But of course there really aren’t any. Copyright can in some cases encourage creation and publication but it is not always an engine of whatever that produces more good than ill. In some cases it fails to have any useful effects, because it offers an incentive which is negligible compared to natural incentives (such as homeowners that want to commission a custom house and are willing to just pay for labor).

“I think the issue at question in that case was that the recording of a guitar chord can be protected. Had N.W.A. recorded their own guitar arpeggio, even if it was the same chord used in the original Funkadelic song, I don’t believe there would have been an issue. This is an example of the difference between idea and expression. The chord form, a theoretical construct, is the idea, and the recording of it is an expression in a fixed medium.”

Oh, not at all. The chord is just as much a part of the work had it been copied from the song as written out in musical notation as from the audio recording. It’s not an idea. I don’t see that the sampling in the case is relevant other than that it firmly establishes that copying occurred.

“That’s pretty much what Mad Magazine has done in every issue for over forty years.”

Mad — which is a good 60-odd years old — engages in parody. My wizard Gandolfini isn’t a parody of Tolkien’s Gandalf, nor did I say anything to suggest that it would be. He’s just named after someone else, rather like how Bugs Bunny is named after Bugs Hardaway.

So three times now you’ve tried to change or otherwise get around points I’ve raised without squarely addressing them. If this were baseball, you’d be out.

Oh, not at all. The chord is just as much a part of the work had it been copied from the song as written out in musical notation as from the audio recording. It’s not an idea. I don’t see that the sampling in the case is relevant other than that it firmly establishes that copying occurred.
Reread the case, because Patrik is correct. The Sixth Circuit held that any copying of sound recordings is per se infringing. This is different from other subject matter, where substantial similarity must be established after factual copying is proven.

Blueprints were already copyrighted as visual works. The AWCPA added a copyright in actual buildings themselves.

Ah, I see. I was under the impression that blueprints weren’t protected until 1990, and I wasn’t aware that actual structures are protected by copyright. I see that that was a result of the US joining the Berne Convention, so wouldn’t you need to expand the scope of your question to include buildings in Europe dating back to the 1880s? I’m assuming here that architecture was protected from Berne’s creation, but it might have been added at a later date than the 1880s. I’m a musician, not a law scholar.

The chord is just as much a part of the work had it been copied from the song as written out in musical notation as from the audio recording. It’s not an idea. I don’t see that the sampling in the case is relevant other than that it firmly establishes that copying occurred.

All I meant is that a “chord” is nothing more than a naming convention for the relationship between notes in a particular key. It’s a way to communicate between musicians. The naming is fluid; the same chord might be called B9 in one key, or an inverted C# when played in another (technically you can justify any convoluted name for any chord depending on how you choose to look at the key). A Gmajor played on a piano is not the same pattern of notes as a Gmajor played on guitar. A guitarist who is slightly out of tune will refer to his chord as Aminor, even though he’s not actually playing the correct notes. However, he is still correct in referring to the form of the relationship between his notes as an A minor, from his perspective.

It’s kind of like how the name of a city is not the city itself.

The notes in question aren’t even a chord, technically speaking. A chord is notes sounded in unison, not in sequence. But it is still practical to refer to it as a chord, from a guitarist’s perspective, because he/she is probably holding their left hand in the shape of a chord, and plucking individual notes rather than strumming across the strings. But I digress.

Nevertheless, the fact that N.W.A. actually used Funkadelic’s recording was the issue at hand in that case. I may be mis-remembering this, but I believe the judge in that case even made the point that it was odd to consider that if the three notes in question had been re-performed, there wouldn’t be a case. I may be confusing that with the judge’s statements in the Beastie Boys case about the flute sample, or maybe I’m totally mistaken.

My wizard Gandolfini isn’t a parody of Tolkien’s Gandalf, nor did I say anything to suggest that it would be. He’s just named after someone else, rather like how Bugs Bunny is named after Bugs Hardaway.

So you just want to name a wizard in your story Gandolfini? Would that really be a legal problem? Gandolfini is a real name, so I don’t see why you wouldn’t be able to use it to name a character in a story. And I assume that as long as your fantasy novel doesn’t blatantly lift aspects of Tolkien’s work, there wouldn’t be any grounds for someone to sue you.

Oddly enough, my original interpretation of your suggestion has been done. It’s a small world:

So three times now you’ve tried to change or otherwise get around points I’ve raised without squarely addressing them. If this were baseball, you’d be out.

No need to get adversarial. You seem to think you’re in some sort of contest that can be won. I’m not trying to avoid your points, they just aren’t very clearly stated and seem riddled with paranoia. But for the record, you are dead wrong about the N.W.A case so I’m still at the plate. And I’m not convinced you would actually be in legal jeopardy for naming a wizard Gandolfini. Lob another hanging curve and it’s you who is going to be taken out of this game.

Chord progressions are not usually subject to protection only because most chord progressions were already in the public domain even before the concept of copyright existed. But by the theory that copyrights ought never terminate, nothing would ever (automatically) enter the public domain, and something as basic as a 1-4-5 chord progression would still be “owned” by the heirs, successors or assigns of whomever it was that first used such, many millenia ago.

Just as by this theory, James Joyce should have been prohibited from writing Ulysses, unless he could obtain a license from the heirs, successors or assigns to Homer’s rights to the Iliad and the Odyssey.

Even among the most ardent advocates for expansive copyright, I doubt you would find much serious support for your apparent contention that infinite copyright terms would encourage, rather than impede, the fine arts.

Chord progressions are not usually subject to protection only because most chord progressions were already in the public domain even before the concept of copyright existed. But by the theory that copyrights ought never terminate, nothing would ever (automatically) enter the public domain, and something as basic as a 1-4-5 chord progression would still be “owned” by the heirs, successors or assigns of whomever it was that first used such, many millenia ago.

I don’t think that is correct. Common chord progressions and other standard elements are unprotectable, so even under current copyright law, if one were to be the first to use a chord progression, one would not have an exclusive right to it.

Terry, they’re only “standard elements” because they’ve been around for so long. If you need to draw a distinction between “common” chord progressions and un-“common” chord progressions, in terms of protectability, you’re making my point — because the implication is precisely that chord progressions are protectable, so long as they are original.

The 1-4-5 chord progression was once original, and therefore protectable. The view that infinite copyright terms would do no harm to the fine arts would, therefore, imply that there would be no harm to the arts if the 1-4-5 progression — along with all the other “common” chord progressions that form the basis for almost all (western) music — had to be licensed to be used.

I doubt you could find many who would agree that if all common chord progressions were proprietary, that would not be extremely harmful progress in music.

That isn’t necessarily so.
Usually it is the melody that is what is covered by copyright (besides actual recordings which is its own copyright). the underlying structure is , in all but a handful of very specific cases (none of the exceptions had anything to do with chord structure or sequence…) not material in and of themselves.

The analyses I’ve found in searching the web seem consistent in suggesting that copyright protection for chord progressions is conceptually possible, but that there’s a very high bar to proving originality, so it doesn’t happen in practice. That’s consistent with what Terry’s said (about “common” progressions and “standard elements” not being protectable), and with what I’ve been saying: there’s not some structural exception that prohibits chord progressions from being protected, there’s merely the fact/presumption that it would extremely rare for a chord progression created at this point in time to be so different from prior chord progressions that it would qualify as original. These presumptions obviously weren’t relevant if we roll back to when those progressions were originally conceived. (Everything was original, once upon a time.)

And that’s the point, regardless of whether or not you like this particular example. Even in the fine arts, there are very significant elements of derivation and even copying. The notion that fine art copyrights could be granted infinite terms without significantly hampering subsequent creation in fine arts is just not credible.

Let me be clear, I was very intentionally not citing web references. I was noting that what I was saying was consistent with what Terry was saying, as well as consistent with analyses I found on the web. Since you’ve asked, here’s one example: http://legalit.com.au/legaliblog/?p=28 (I’ve learned by now that any more than one link without having the comment go into the purgatory of awaiting moderation.)

In any case, given that there’s no question that music is copyrightable, the burden of proof really falls on one who claims that chord progressions (which are, after all, music) are categorically ineligible for copyright protection, to support that assertion. I don’t think a burden falls on me to prove my assertion that any music which is sufficiently original (including original chord progressions, as they are music) is eligible for copyright protection, as our system is constructed.

Just as the alphabet and words aren’t copyrightable, notes and chords aren’t. Notes and chords are the ‘language’ used, not the work itself.
I’m not a lawyer, but i believe this would fall inder the “Useful Article” explanation:http://www.copyright.gov/fls/fl103.pdf

A snippet from the above copyright office article (it is short, only one page.. should just take a minute to read): “Copyright never protects the mechanical or utilitarian aspects of an ‘article’, whether useful or not. No matter how novel, distinctive or aesthetically pleasing…”

Single letters and single notes may not be copyrightable (for lack of sufficient original content), but combinations of letters (formed into words) and combinations of notes (formed into music) are, provided they are sufficiently original.

Are you suggesting that a chord progression is not a combination of notes, formed into music?

That’s not what i said.
Chord progressions (and scales) *by themselves* have to do with music theory; and that’s where i suggested the ‘useful article’ comes to play. I’m not saying that,combined with little else they can’t be coprighted, but i does need that something else on top. Hey, i could be wrong (wouldn’t be the first time..) … this might be a conversation that needs a musicologist involved.
If it is so, as you say, indeed it would definately be the rare exception… i’m just not aware of any.

As for Google/YouTube settling (or otherwise face a perjury charge) with Viacom, terms of the settlement have yet to be disclosed. Reports that claims to know anything without authorization of the disclosure are false. Thanks.

About

Copyhype provides news and info on current developments relating to copyright law, the media industries, and the digital economy. It cuts through the hype to bring reasoned discussion aimed at both legal and nonlegal audiences.

Terry Hart is currently VP Legal Policy and Copyright Counsel at the Copyright Alliance. Any opinions expressed on this site remain his own and not necessarily those of his present or any past employers.